SCOTUS

Noting that Midland buys old debt it knows is not legally recoverable because of various state laws preventing collection after a number of years, Sotomayor asked, “Apparently, you collect on millions of dollars of these debts. So is that what you do?”

Yes. Yes it is.

This is a conversation every consumer lawyer has had many times with clients. No, you don’t owe the debt any more. Yes, they can still collect it. Yes, that’s fucked up.Apparently the Supreme Court just learned about zombie debt, and a few of the justices, at least, seem to agree that it’s pretty fucked up.

Everyone agrees that a consumer plaintiff who prevails in a Fair Debt Collection Practices Act lawsuit is entitled to get his or her attorney fees and costs paid by the debt collector defendant. But in Marx v. General Revenue Corporation, the question is whether, under the Federal Rules of Civil Procedure, a debt collector can collect costs from an unsuccessful plaintiff. In other words, does the FDCPA apply, or do the rules of civil procedure?

This is a Really Big Deal, because if debt collectors can collect costs from unsuccessful plaintiffs, it will make it riskier to sue debt collectors. Quite apart from the law, the whole point of the FDCPA is to provide a formidable check on debt collection abuses. Damages in these cases are small, so if they cannot recover attorney fees and costs — or if they risk having to pay substantial costs — they will not sue.

If you want people to be able to stop debt collection abuses, then you cannot increase the risk. Doing so will render the FDCPA far less effective as a check on debt collection abuses. If you think consumers and consumer lawyers are running amok, then I suppose you favor the debt collector’s position.

The U.S. Supreme Court likes business. So much so that it decided 22 of 30 business cases last term unanimously in favor of business, and “Ruth Bader Ginsburg, Stephen Breyer and David Souter each went out of his or her way to question the use of lawsuits to challenge corporate wrongdoing . . . .” Guess the business community’s campaign to change the Court has largely worked.

The Supreme Court handed down two anticipated FCRA decisions yesterday, Safeco v. Burr and Geico v. Edo. Consumer Law & Policy has a detailed report on the decisions, and will no doubt analyze them in greater detail in the coming days. In brief, the cases were a victory for consumers, but not quite cause for celebration.

The FCRA requires certain entities to notify consumers when they take an adverse action based on the consumer’s credit report. As you may recall, insurance companies have been using credit reports as a component of setting insurance premiums for some time. Safeco and Geico both deal with this.

In Safeco v. Burr, the Court decided that a defendant commits a “willful” violation of the FCRA if he or she recklessly disregards the law (in this case, requiring an insurance company to notify the consumer when taking an adverse action–setting a higher premium–based on their credit report). The insurance companies hoped for a looser interpretation, that would allow them to violate the law if they didn’t know (and didn’t care) they were violating it.

Overall, however, the cases are not so positive for consumers, because an insurance company that takes an adverse action against an insurance customer based on his or her credit report can apparently escape liability under the FCRA if the consumer got the same rate with or without taking the score into account (the facts in Geico). Safeco, it turns out, was not reckless because it had no guidance on FCRA notification from the FTC or courts of appeals.

In other words, you are liable if you act with reckless disregard for the law, but you aren’t liable if your reckless disregard doesn’t harm the consumer. This sort of conflates the two components of any case, liability and damages.

On balance, however, this means that consumers should see a bit more transparency when it comes to credit reports and insurance premiums. On the other hand, a number of open questions as a result of the decisions mean it may be years before the credit report/insurance premium issue reaches any real resolution.

The Office of the Comptroller of Currency is the federal administrative agency charged with overseeing nationally-chartered banking institutions such as Wells Fargo, US Bank, and in this case, Wachovia Bank. However, nobody has been able to say that line without smirking for years, because whatever the OCC does, it isn’t overseeing banks or enforcing regulatory laws.

But what about non-nationally-chartered banks? What about non-nationally-chartered banks owned by nationally-chartered banks?

Let’s find out: Watters v. Wachovia Bank, N.A.. In brief, Wachovia sued the State of Michigan because Michigan didn’t want to have to register as a mortgage lender in Michigan. Wachovia claims it was complying with Michigan laws; it just didn’t want to register there. The OCC swooped in and issued regulations preventing any state from regulating subsidiaries of nationally-chartered banks even though those subsidiaries are not also nationally-chartered banks.

The case ended up in the Supreme Court, which decided that non-nationally-chartered banks owned by nationally-chartered banks are not subject to state law, even though non-nationally chartered banks that are not owned by nationally-chartered banks are subject to state laws.

Confused? Me too, but here is the gist of it. What this really means is that if, say, Wachovia Mortgage writes you a fraudulent loan, you can’t sue them under state law. This is a big problem, because federal law currently provides little or no recourse for common scams like equity stripping and the subprime lending fiasco now making headlines, where major lenders may write dozens of loans to an equity stripper or broker that the lender knows or should know are funding consumer fraud. And the OCC isn’t likely to do anything, so consumers may be left without recourse. Ouch.

(For the record, yes, some subprime lenders are not nationally-chartered banks or their subsidiaries. But some are.)

On Monday, the U.S. Supreme Court issued its decision in Phillip Morris USA v. Williams (PDF link), deciding that “[a] punitive damages award based in part on a juryÂ’s desire to punish a defendant for harming nonparties amounts to a taking of property from the defendant without due process.”

The key word in that sentence is “nonparties.” The problem with the Court’s reasoning is that punishing a company for its conduct must take into account the company’s conduct towards third parties. As Justice Stevens noted in his dissent:

A murderer who kills his victim by throwing a bomb that injures dozens of bystanders should be punished more severely than one who harms no one other than his intended victim. Similarly, there is no reason why the measure of the appropriate punishment for engaging in a campaign of deceit in distributing a poisonous and addictive substance to thousands of cigarette smokers statewide should not include consideration of the harm to those Â“bystandersÂ” as well as the harm to the individual plaintiff.

Yesterday, the U.S. Supreme Court heard oral argument in Phillip Morris v. Williams, a tobacco case from Oregon where a jury awarded $79 million to the plaintiff. The issue on appeal is whether juries can award punitive damages for harm to third parties not involved in the lawsuit, and places the Rehnquist Court’s BMW v. Gore analysis in the crosshairs (partially, at least).
The Rehnquist Court frequently slashed punitive damages awards based on a three-pronged analysis: (1) the degree of reprehensibility of the conduct; (2) the ratio between punitive and compensatory damages; and (3) a comparison of the amount of punitive damages to any civil or criminal penalties that could be imposed for comparable misconduct.

Deepak Gupta at the Consumer Law & Policy Blog has more, along with links to the oral argument transcript and reactions from media and the blogosphere.

Law schools across the country have, in recent years, banned military recruiters from their campuses because of the military’s “don’t ask, don’t tell” policy on gays. The catch is that many law schools receive federal funding, one of the conditions to which is that the law schools must allow military recruiters on campus.

The federal law, known as the Solomon Amendment after its first congressional sponsor, mandates that universities give the military the same access as other recruiters or forfeit federal money.

The case pitted the government’s spending power against the schools’ right to associate and their right to free speech. The law schools argued that they could not survive without federal funding, and that forcing them to accept military recruiters forced them to associate against their will, and forced them to appear to advocate the military’s policies. Justice Roberts wrote the opinion, in which the Supreme Court held:

“A military recruiter’s mere presence on campus does not violate a law school’s right to associate, regardless of how repugnant the law school considers the recruiter’s message.”